A New York Probate Proceeding May Involve A Waiver and Consent to Probate

There are numerous aspects to the probating of a Last Will in New York. When a person dies and leaves a Will the final disposition of his estate cannot take place until a probate proceeding is completed. Such proceeding involves the filing with the Surrogate’s Court of the original Will along with other papers such as an original death certificate and a probate petition. Typically, the person named as the Executor in the Will files for probate.

Probate essentially means that the Surrogate’s Court approves and validates the Will and the directions for the distribution of the estate contained in the document. The New York Probate Lawyer Blog has posted many articles regarding Wills and Probate.

In the petition for probate, there is a requirement that the Court be given the names and addresses of the decedent’s distributees. Distributees are the decedent’s next of kin who would receive his estate by intestate succession if the Will did not exist or was found to be invalid.

In view of their potential right of inheritance in the absence of a Will, estate distributees have a right to Object to a Will. During the course of the Court proceedings, the distributees are made parties to the probate case in a number of ways. A distributee may be served with a Citation which is like a Summons. The Citation states that the distributee must appear in the Surrogate’s Court on a certain date and tell the Court if a Will Contest is expected.

Instead of being served with a Citation, a distributee is often given the opportunity to sign a paper known as a Waiver of Consent to Probate. This paper provides that the distributee has no objection to the probate of the Will. Once the waiver is signed and filed with the Court the distributee essentially waives his right to contest the Will.

On occasion a distributee will sign and file a Waiver and Consent and then decide that he wants to withdraw the Waiver and proceed with the Will Consent procedures. In the event the distributee seeks to undo his Waiver he must make an application to the Surrogate to provide such relief. However, the Courts require that a person’s application meet a certain level of merit before a Waiver can be set aside. In a recent case decided by Manhattan Surrogate Nora Anderson on July 10, 2017 entitled Will of Weiss, the Surrogate denied a request to set aside a Waiver. The Court found that although the distributee was not represented by an attorney when the Waiver was signed, he did not present a sufficient showing that there was merit to a possible Will contest even if he were allowed to contest the Will.

The probate process and Will contests can be very complicated. I have represented both petitioners and contestants in these matters. If you have a question or issue regarding estate administration or a Surrogate’s Court case, call me now for a free discussion. I have represented clients throughout New York City and the surrounding counties.

An experienced New York trusts and estates lawyer can assist with guidance for proper Will preparation, execution and Will contests. New York Probate Attorney Jules Martin Haas, Esq. has been representing clients in New York in Trusts and Estates matters and Surrogate’s Court proceedings throughout the past 30 years in Suffolk and Nassau and other counties. If you or someone you know is involved with or has questions about a New York estate matter, please contact me at (212) 355-2575 or email: jules.haas@verizon.net, for an initial consultation.